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July 22, 2006

Short circuited while on the road

While on the road the last two weeks, I have not been able to follow federal circuit court sentencing decisions with any regularity. I have been alerted to a few notable dispositions, discussed here, but I am sure I have missed some important action.

The goal of this post is to ask reader to use to comments to report any significant rulings from July that should not be overlooked. Thanks for your help.

July 21, 2006

Seventh Circuit affirms above-guideline sentence

Though not appearing to break any new ground, the Seventh Circuit affirmed an above-guideline sentence on Friday in US v. Howard, No. 05-3216 (7th Cir. July 21, 2006) (available here). The sentence in Howard was nearly 5 years above the top of the guideline range (which was just under 20 years).

Notably, the Seventh Circuit in Howard says once again that "the concept [of departures] has been rendered obsolete in the post-Booker world." I continue to find it peculiar that the Seventh Circuit affords a guideline sentence a presumption of reasonableness at the same time that it rejects a key facet of the entire guideline sentencing system.

Bad day for defendants in Eleventh Circuit

While I was enjoying sea and surf today, the Eleventh Circuit issued two huge sentencing decisions. Here is the report I received via e-mail:

U.S. v. Williams on crack/powder and career offender variances from guidelines range and U.S. v. Faust on use of acquitted conduct at sentencing. Defendants lost on all counts, but there's a good concurrence on the acquitted conduct issue in Faust.

When time and family permit, I'll be reading and commenting on these notable rulings.

UPDATE: Judge Barkett concludes her thoughtful concurrence in Faust by stating that she does "not believe the Constitution permits this cruel and perverse result" of a sentence enhanced on the basis of acquitted conduct. But, sadly, every circuit to date, even after Blakely and Booker, still finds no constitutional problem with enhancing a sentence based on acquitted conduct. I think the Framers would be both shocked and disgusted by this reality.

The opinion in Williams smacks down all of the non-guideline work done by Judge Presnell at the defendant's initial sentencing. Like the First and Fourth Circuits, the Eleventh Circuit in Williams completely avoids the central instruction from Congress to sentencing judges in 18 U.S.C. § 3553(a): "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."

As I explained in this post entitled "Crack sentencing and the anti-parsimony pandemic," the USSC has repeatedly documented that the crack guidelines recommend sentences that are "greater than necessary" to achieve the purposes of § 3553(a)(2). Given the USSC's findings, the parsimony command of § 3553(a) supports — arguably even requires — a district court's decision not to follow the crack guidelines. Consequently, upon appellate review, it is hard to understand what is "unreasonable" about a district court's decision to follow Congress's parsimony command in light of the USSC's expert work by sentencing below the crack guidelines.

Eighth Circuit continues rebuilding guideline world

The Eighth Circuit continues to reverse neary every district court effort to bring better procedures and more humanity to federal sentencing. Here are the official descriptions of its three reversals of below-guideline sentences on Thursday:

US v. Lee, No. 05-3526 (8th Cir. July 20, 2006) (available here): District court adequately articulated its reasoning for imposing a 54% variance, however, given the factual record, the court clearly erred by basing its variance primarily upon defendant's age and history of drug abuse as the record shows his characteristics in these areas are not exceptional and do not justify the variance.

US v. Okai, No. 05-3560 (8th Cir. July 20, 2006) (available here): Except in certain limited cases, Guidelines Sec. 6A1.3 requires sentencing courts to apply the Guidelines enhancements that are proven by a preponderance of the evidence, and the district court's failure to do so here resulted in an incorrect advisory Guidelines calculation; defendant's generalized constitutional objections to the sentencing enhancements were insufficient to serve as objections to the specific facts supporting each enhancement, and the factual allegations of the Presentence Report were, therefore, admitted for sentencing purposes; case remanded for resentencing.

US v. Robinson, No. 05-4268 (8th Cir. July 20, 2006) (available here): Extraordinary variance of imposing probation, when the low end of the applicable Guidelines range for defendant's firearm offense was 63 months, was not supported by extraordinary circumstances and was unreasonable; case remanded for resentencing.

Old school execution

As detailed here in links from How Appealing, Virginia had an "old style" execution yesterday after murderer Brandon Wayne Hedrick chose death by electric chair rather than by lethal injection. This report from a local paper provide a lot of details about the execution process, including these particulars:

He was ushered into the electric chair and a half-dozen execution team members secured him stiffly upright with leather and nylon straps on his limbs and torso before asking if he had any last words. A metal device holding a sea sponge soaked in brine was then attached to his right calf, and a wide strap with a hole for his nose but covering his eyes and mouth secured his head to the chair. A metal cap holding another brine-soaked sponge was strapped on the top of his head. Power cables were then connected to the head and leg.

A prison official turned a key on the wall activating the system and an execution team member viewing the chair through a one-way window pressed the execution button.

It was about 9:02 p.m. when Hedrick's body jumped up straight, straining against the straps, his fists clenched. A small amount of smoke briefly rose from his leg. His body briefly relaxed between the two 90-second cycles of electricity. Each cycle starts with about 1,800 volts at 7.5 amps for 30 seconds and then 60 seconds of about 240 volts at 1.5 amps.

His body jumped and leg smoked at the start of the second cycle. After five minutes, a physician entered, put a stethoscope to Hedrick's chest and pronounced him dead.

Second Circuit jumps into Rule 32 split

As noted here at DotD, the Second Circuit in US v. Anati, No. 05-3800 (2d Cir. July 20, 2006) (available here) has now addressed whether Rule 32(h) of the Federal Rules of Criminal Procedure still requires a sentencing court to give a defendant notice before imposing an above-guidelines sentence after Booker. As DotD explains, the "Fourth and Ninth Circuits have held that Rule 32 still applies, while the Third, Seventh, and Eighth have concluded that it does not [and now] the Second Circuit joins the yea-sayers in holding that Rule 32 still requires notice."

July 20, 2006

Explaining a record variance

Thanks to this post at the White Collar Crime Prof Blog, I see that SDNY Judge Jed Rakoff has authored a detailed opinion to explain the extraordinary below-guideline sentence he gave to former Impath Inc. President, Richard Adelson. I discussed this notable sentence last month in posts here and here. Judge Rakoff's sentencing memorandum in the Adelson case can now be accessed here, and it starts and ends this way:

This is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law....

To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have so run amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences. This the Court has endeavored to do, as reflected in the statements of its reasons set forth at the time of the sentencing and now in this Sentence Memorandum prompted by the dictates of Rattoballi. Whether those reasons are reasonable will be for others to judge.

New article on shaming sanctions

Professor Dan Kahan, who helped generate modern academic discussion of shaming sanctions with his article What Do Alternative Sanctions Mean, 63 U. Chi. L. Rev. 591 (1996), has a follow-up article now posted on SSRN. Entitled "What's Really Wrong with Shaming Sanctions" and available here, this is the article's intriguing abstract:

In this article, I renounce my previous defense of shaming penalties. Sort of. In What Do Alternative Sanctions Mean, 63 U. Chi. L. Rev. 591 (1996), I argued that shaming penalties would likely be a politically viable substitute for imprisonment for a range of nonviolent (or relatively nonviolent) offenses because unlike fines, community service, and other alternative sanctions that have encountered decisive resistance, shaming unambiguously expresses moral denunciation of criminal wrongdoers. Drawing on work that I've done since then, I now acknowledge that the premise of this analysis was flawed. Ordinary citizens expect punishments not merely to condemn but to do so in ways that affirm rather than denigrate their core values. By ritualistically stigmatizing wrongdoers as transgressors of shared moral norms, shaming penalties grate against the sensibilities of persons who subscribe to egalitarian and individualistic worldviews. To maximize its chances of widespread adoption, an alternative sanction must be expressively overdetermined - that is, sufficiently rich in meanings to appeal simultaneously to citizens of diverse cultural and moral persuasions. I suggest that restorative justice can satisfy that criterion, but only if its proponents resist the impulse to purge it of expressive elements that make it appealing to the very citizens who were willing to endorse shame.

Federal defender submission to USSC

A great friend of the blog has sent me a copy of a long submission to the Sentencing Commission from the Federal Public and Community Defenders. The submission, which I cannot seem to uploaded because of crancky on-the-road technology, proposes priorities for the USSC's next amendment cycle. It presents policy and constitutional critiques, and proposes solutions, on topics such as: (1) unfairness and inaccuracy in factfinding, (2) criminal history, including the career offender guideline, non-violent first offenders, and factors included and excluded from criminal history rules, (3) the use of uncharged, dismissed and acquitted separate offenses, (4) sentences in drug cases, (5) the need for an updated report on mandatory minimums, (6) the need to expand non-prison alternatives, and (7) the illegal re-entry guideline and fast track departures.

The submission includes an Appendix of recent cases sentenced under the guidelines' relevant conduct rules with little or no procedural safeguards. The cover letter, which summarizes the problems and solutions in the seven areas, concludes with these two paragraphs:

It is time for the Commission to move forward and fix what is broken. Justice Breyer previously called upon the Commission to act forcefully to reduce the false precision, unfairness, and inefficiency increasingly reflected in the guidelines over time, and to move in the direction of greater judicial discretion, fairness and equity. While the Commission has amended the guidelines nearly 700 times, only a handful of these amendments sought to reduce sentences. This cannot be explained away by placing the blame on Congress.

In United States v. Booker, 543 U.S. 220 (2005), Justice Breyer invited the Commission to "modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices." Id. at 263 (emphasis supplied). The Commission's response to Booker thus far has been to promote a fiction that the guidelines "embody" the purposes and factors set forth in 18 U.S.C. 3553(a) and to denigrate the exercise of judicial discretion as "non-conforming." This course is not productive. It stands in the way of reform, promotes disrespect for law, and may very well result in another Supreme Court ruling of unconstitutionality. We urge the Commission to take advantage of Booker to learn, to modify the guidelines accordingly, and to teach Congress what it learns.

I hope to provide a copy of or link to the defenders' submission as soon as technology allows me to do so.

UPDATE: The Fourth Circuit Blog discusses the defender submission here, and provides this link to enable downloading the full document.

Third Circuit taking burdens en banc

A helpful reader alerted me to an interesting circuit development: the Third Circuit agreed to rehear en banc its recent Grier decision addressing burdens of proof in federal sentencing. I discussed Grier at length here and here, and lots of related coverage can be found in links below:

July 18, 2006

Seventh Circuit reverses within-guideline sentence, I think

Though a little opage, the Seventh Circuit's ruling in US v. Bullock, No. 05-2655 (7th Cir. July 18, 2006) (available here), seems to reverse what is arguably a within-guideline sentence (of 1200 months)!
Though the facts and ruling are hardly a ringing endorsement for rigorous reasonableness review, the Seventh Circuit's reversal of the defendant's 100-year sentence for five counts of distributing heroin is still noteworthy and important.

Mark your SCOTUS calenders

This post at SCOTUSblog sets out the Supreme Court's argument schedule for the start of October Term 2006. For criminal justice fans, October 3, the first day of arguments, and October 11, are the dates to put in red letters. Indeed, I am thinking about a trip to DC on October 11 to hear arguments in Cunningham, the California Blakely case.

Ninth Circuit stresses need for sentence explanation

On Monday in US v. Carty, No. 05-10200 (9th Cir. July 17, 2006) (available here), the Ninth Circuit reviewed its approach to reasonablenes review and reversed a within-guideline sentence because the district court failed to address the 3553(a) factors that control sentencing after Booker. Here is the Carty court's concluding paragraph:

Although several circuits have afforded a presumption
of reasonableness to within-the-Guidelines sentences, [cites], we have not adopted this position. We offer no
opinion whether the district court’s within-the-Guideline sentence
here was, in fact, reasonable. We hold only that post-Booker, when imposing a sentence, a district court must provide
on the record some articulation of its consideration of the
§ 3553(a) factors and explanation of the reasons underlying
its sentence selection. Because the district court did not create
such a record, we remand for resentencing.

Constitution Project urges post-Booker reforms

With perhaps not enough fanfare, the Constitution Project's Sentencing Initiative last week released another important report from its blue-ribbon Committee working on post-Booker sentencing reforms. Details about the new report and access to it are available at this page, and here is a brief official account of the report's mission and particulars:

The Constitution Project's bipartisan Sentencing Initiative [has] issued specific recommendations for improving federal sentencing. The Initiative's Recommendations for Federal Criminal Sentencing in a Post-Booker World, which can be found at this link, provide guidance for simplifying existing sentencing guidelines, improving due process for criminal defendants, and increasing participation by crime victims. They also offer alternative options for an entirely new sentencing scheme.

The blue-ribbon Sentencing Initiative, an ideologically diverse committee co-chaired by Edwin Meese III, Attorney General during the Reagan Administration, and Philip Heymann, Deputy Attorney General during the Clinton Administration, has been examining various aspects of criminal sentencing since 2004. The committee's latest recommendations were prompted by the U.S. Supreme Court's decision last year in U.S. v. Booker, in which the Court ruled that the previously mandatory Federal Sentencing Guidelines must be treated as advisory in order to be constitutional.

According to Co-chair Meese, "The Sentencing Initiative's bipartisan recommendations should guide any attempt to reform our nation's criminal sentencing system. Simplification of the Federal Sentencing Guidelines, combined with improving discovery for defendants and participation by victims, will produce a sentencing scheme that is more fair and effective and that both protects public safety and defendants' constitutional rights."